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THE    BINDING    FORCE    OF 
INTERNATIONAL   LAW 


CAMBRIDGE   UNIVERSITY   PRESS 

ILottlron:   FETTER  LANE,    E.G. 

C.  F.   CLAY,   Manager 


O^tiinfiurg!):   loo,  PRINCES  STREET 

HontJon:   STEVENS  AND  SONS,  Ltd.,  119  and  120,  CHANCERY  LANE 

Berlin:  A.  ASHER  AND  CO, 

fLeipjtg:   F.   A.   BROCKHAUS 

i^eto  gorft:   G.  P.  PUTNAM'S  SONS 

Bombap  anH  Calcutta :  MACMILLAN  AND  CO.,  Ltd. 


All  rights  reserved 


THE    BINDING    FORCE    OF 
INTERNATIONAL    LAW 


INAUGURAL  LECTURE  IN  INTERNATIONAL  LAW  AT 

THE  LONDON  SCHOOL  OF  ECONOMICS  AND 

POLITICAL  SCIENCE.     SESSION  1910— ii 


BY 

A.   PEARCE  HIGGINS,  M.A.,  LL.D. 

Of  Lincoln's  Inn,  Barrister-at-Law 

Lecturer  in  Clare  College,   Cambridge 

Lecturer  on  Public  International  Law  at  the  London 

School  of  Economics  and  the  Royal  Naval  War  College 


»    >   • 


Cambridge : 

at  the  University  Press 

1910 


PRINTED   BY  JOHN    CLAY,    M.A. 
AT  THE  UNIVERSITY   PRESS 


^ 
> 


SYNOPSIS 

Objections  to  International  Law  as  law.  What  is  International 
Law  ?  Its  origins :  custom  and  treaties.  Still  in  process  of 
development,  incomplete  in  several  departments.  Reasons 
for  its  observance,  the  social  and  political  instincts  of  men. 
The  force  of  public  opinion,  diflSculties  in  concentration. 
Public  opinion  and  treaties,  difficulties  regarding  their 
termination,  Russia  in  1870,  Austria  in  1908.  The  observ- 
ance of  the  laws  of  war.  International  Law  has  not 
abolished  w^ar.  Cynicism  and  the  growth  of  the  power  of 
law.  The  moral  basis  of  rules  of  law.  Some  weaknesses  in 
the  present  situation.  War  and  diplomacy.  The  growth  of 
arbitrations  and  the  increase  in  armaments.  The  present 
a  transition  stage.  The  future  of  International  Law;  its 
value  as  a  unifying  power;  the  education  of  nations;  the 
importance  of  the  study  of  existing  rules  as  a  means  to  the 
extension  of  the  reign  of  law.  Forces  at  work  in  this 
direction.    Backward  position  of  study  in  Great  Britain. 


256538 


THE    BINDING    FORCE    OF 
INTERNATIONAL   LAW 

Rather  more  than  twenty  years  ago,  during 
the  course  of  a  correspondence  in  the  Times, 
one  of  the  writers  remarked  that  International 
Law  was  "  all  nonsense  "  and  that  "  when  we 
are  at  war  with  an  enemy  he  will  do  his  best 
to  injure  us;  he  will  do  so  in  what  way  he 
thinks  proper,  all  treaties  and  so-called  Inter- 
national Law  notwithstanding."  The  same 
correspondence  also  brought  into  prominence 
the  fact  that  some  of  the  writers  had  very  little 
respect  for  "  old-fashioned  treaties,  protocols 
and  other  diplomatic  documents."^  Some 
few  years  previous  to  this  correspondence  a 
French  Admiral  in  an  Article  in  the  Revue  des 
deuxMondeshad  spoken  of  "cette  monstrueuse 
association  de  mots  :  les  droits  de  la  guerre." 
Clausewitz  in  his  monumental  work  on  war 
also  wrote  of"  self-imposed  restrictions,  almost 

H.  1 


THE  BINDING  FORCE  OF 


imperceptible  and  hardly  worth  mentioning^ 
termed  the  usages  of  international  law."     This 
manner  of  looking  at  International  Law  is  not 
confined  to  any  one  class  of  the  community. 
International  lawyers  are  told  often  enough 
that  the  rules  they  expound  have  none  of  the 
requirements  of  Positive  Law,  that  apart  from 
rules  based  on  treaties,  the  rest  are  merely 
moral  aspirations,  and  as  for  the  treaties  them- 
selves, there  is  no  permanence  in  them  and  no 
power  to  enforce  their  observance.   Now  it  may 
be  as  well  at  once  to  admit  that  viewing  Inter- 
national Law  from  the  standpoint  of  students 
adopting  the  principles  of  Hobbes  and  Austin 
it  lacks  the  marks  of  Positive  Law  which  they 
predicate.     There  is  no  superior  lawgiver  (but 
Hague  Conferences  contain  the  embryo  of  a 
possible  International  legislature),  no  Inter- 
national   Court    (though   that   deficiency    is 
gradually  being  made  good),  no  International 
policeman,  no  definite  punishment  for  breaches 
of  the  rules,  self-help  is  the  only  remedy  2. 
Notwithstanding  the  absence  of  these  factors 
I  am  prepared  to  contend  that  the  body  of 


INTERNATIONAL  LAW 


principles  known  as  International  Law,  or  the 
Law  of  Nations,  is  fully  entitled  to  the  name  of 
Law,  and  that  it  is  of  binding  force  among  the 
nations  of  the  civilised  world.  It  is  not  perfect, 
it  is  not  complete,  it  is  still  in  the  making,  but 
its  rudimentary  principles  are  increasingly 
appearing  in  more  definite  form. 

What  is  International  Law  and  whence  are 
its  rules  derived  ? 

International  Law  is  7iot  a  body  of  rules 
which  lawyers  have  evolved  out  of  their  own 
inner  consciousness :  it  is  not  a  system  care- 
fully thought  out  by  University  Professors, 
Bookworms,  or  other  theorists  in  the  quiet 
and  seclusion  of  their  studies.  It  is  a  living 
body  of  practical  rules  and  principles  which 
have  gradually  come  into  being  by  the  custom 
of  nations  and  international  agreements.  To 
the  formation  of  these  rules,  Statesmen,  Diplo- 
matists, Admirals,  Generals,  Judges  and  pub- 
licists have  all  contributed.  It  is  also  of 
comparatively  modern  origin,  for  the  existing 
state  system  of  the  world  dates  in  effect  from 
the  end  of  the  Middle  Ages.     So  long  as  the 

1—2 


THE  BINDING  FORCE  OF 


states  of  Europe  acknowledged  the  supremacy 
of  a  great  world  power,  whether  the  spiritual 
domination  of  the  Papacy  or  the  temporal 
overlordship  of  the  Emperor,  there  was  no 
possibility  of  the  existence  of  a  system  of 
International  Law,  but  with  the  Reformation 
and  the  termination  of  the  wars  of  religion  in 
the  middle  of  the  17th  century,  and  the  com- 
ing into  being  of  a  large  number  of  indepen- 
dent sovereign  states  freed  from  the  trammels 
of  religious  and  political  obedience  to  external 
authority,  Pope  or  Emperor,  the  principles 
which  Glrotius  and  other  writers  had  advocated 
became  capable  of  realisation.  The  way  was 
opened  for  the  Supremacy  of  a  new  power, 
the  Reign  of  Law. 

Rules  for  the  mutual  intercourse  of  states 
came  into  being,  principles  which  they  would 
observe  in  the  acquisition  of  territory,  in  the 
conduct  of  negotiations,  and  even  rules  for  the 
great  struggle  of  war  gradually  were  evolved. 

The  earlier  writers  assumed  an  ethical 
basis  for  the  existence  of  the  rules.  Natural 
Law  or  the  Law  of  God,  the  jus  gentium 


INTERNATIONAL  LAW 


of  the  Eoman  Law  and  the  principles  of 
morality  were  appealed  to  as  the  basis  of 
the  rules  of  conduct  of  states.  Reason,  ex- 
pediency, custom  and  convention  have  all 
played  their  part  in  the  erection  of  the  edifice 
we  are  considering.  The  building  is  not  yet 
complete,  its  parts  are  sometimes  disconnected, 
portions  of  it  are  only  in  skeleton,  but  its 
foundations  have  been  laid,  the  plan  prepared, 
and  it  is  for  the  future  to  complete  the  erec- 
tion and  fill  the  Courts  of  the  Temple  of 
Justice. 

International  Law  is  then  the  law  of  the 
society  of  states,  for  independence  and  inter- 
dependence were  soon  found  to  be  correlative. 
The  notion  of  a  family  of  nations,  of  a  society 
of  states,  which  has  long  been  accepted,  first 
by  the  Christian  Powers  of  Europe  and  sub- 
sequently by  other  Powers,  carried  with  it  the 
need  for  intercommunication  and  for  rules  for 
their  mutual  transactions,  rules — the  observ- 
ance or  non-observance  of  which  marked  a 
state  as  being  a  good  or  bad  member  of  the 
international  family.     At  first  they  were  inde- 


6  THE  BINDING  FORCE  OF 

finite;  states  laid  down  rules  for  their  own 
guidance,  and  these  were  dictated  by  policy. 
They  were  not  internationally  binding.  Several 
states  adopted  the  same  or  similar  rules,  an 
international  usage  was  found  to  be  in  process 
of  formation  ;  the  smaller  states  followed  the 
example  set  by  their  more  powerful  neigh- 
bours and  gradually  a  custom  was  formed  and 
that  custom  became  a  rule  of  binding  force. 
Custom  is  the  prime  source  of  International 
Law.  We  need  not  seek  to  go  behind  it  nor 
ascertain  its  causes ;  when  once  a  practice  is 
shown  to  be  of  general  acceptance  among  the 
nations  of  the  world  we  have  a  rule  of  customary 
International  Law. 

But  custom  was  not  sufficient  for  all  cases, 
and  treaties  for  special  practices  between  some 
states  were  entered  into.  Gradually  others 
would  agree  in  like  manner,  and  later  there 
might  come  into  being  a  treaty  to  which  many 
states  were  parties  whereby  special  rules  were 
stipulated  for,  and  provision  made  for  the 
accession  of  non-signatory  states.  It  is  only 
necessary  to  mention  as  an  example  the  De- 


INTERNATIONAL  LAW 


claration  of  Paris  of  1 856.  Thus  gradually,  by 
means  of  custom  and  convention,  there  has 
come  into  being  a  body  of  ''  rules  of  conduct 
which  modern  civilised  states  regard  as  being 
binding  on  them  in  their  relations  with  one 
another  with  a  force  comparable  in  nature  and 
degree  to  that  binding  the  conscientious  person 
to  obey  the  laws  of  his  country."^ 

But  much  remains  to  be  done  before  all 
departments  of  state  life  are  duly  provided  with 
rules  of  general  acceptance,  and  this  is  especi- 
ally true  in  relation  to  war  and  its  cognate 
subject  of  neutrality.  Meantime,  can  it  be 
seriously  contended  that  the  rules,  the  origin 
of  which  I  have  rapidly  and  slightly  sketched, 
have  no  binding  force,  and  cannot  be  dignified 
by  the  name  of  Law?  What  are  the  rules 
which  for  weeks  were  being  discussed  and 
argued  with  matchless  skill  and  ability  by  the 
ablest  lawyers  of  Great  Britain,  Canada  and 
the  United  States  before  the  Hague  Tribunal 
during  the  course  of  this  summer  if  they  are 
not  recognised  as  being  of  legal  binding  force  ? 
Again,  every  Foreign  Office  of  the  world  is 


8  THE  BINDING  FORCE  OF 

daily  engaged  in  endeavouring  to  convince 
some  other  that  the  rules  of  International 
Law  require  that  certain  courses  of  action 
shall  be  taken,  or  that  certain  acts  must  not 
be  done.  And  these  endeavours  are  nearly 
always  successful. 

Furthermore,  when  unfortunately  two 
states  find  it  impossible  to  continue  to  dis- 
cuss some  point  in  dispute  between  them  in 
a  friendly  manner,  and  have  recourse  to  the 
arbitrament  of  the  sword,  even  then  the  old 
Eoman  maxim  of  silent  leges  inter  arma  no 
longer  holds  good ;  for  the  great  international 
duel  between  the  combatants  is  governed  by 
settled  rules  which,  in  the  main,  are  well  ob- 
served in  modern  times ;  any  alleged  infraction 
of  these  rules  is  at  once  strongly  resented,  and 
the  party  accused  of  such  breach  immediately 
endeavours  to  justify  its  action  by  reference 
to  conventions,  publicists  and  custom.  The 
manifestoes  which  it  has  become  the  practice 
for  states  to  issue  to  the  world  at  the  outbreak 
of  war  or  when  they  are  about  to  undertake 
some  enterprise  which  is  likely  to  raise  hostile 


INTERNATIONAL  LAW  9 

criticism  on  the  part  of  the  others,  are  in  fact 
the  pleadings  of  such  states  before  the  Tribunal 
of  the  world's  opinion,  from  which  they  hope 
to  win  a  favourable  verdict,  and  to  avoid  the 
consequences  of  violating  it. 

The  time  has  long  passed  since  every 
state  was  a  law  unto  itself,  and  did  what 
seemed  right  in  its  own  eyes.  Licence  has 
given  place  to  international  liberty  within  the 
law.  States  have  brought  themselves  within 
the  limits  of  rules  which  they  have  voluntarily 
adopted.  Peace  is  the  normal,  war  the  ab- 
normal, condition  of  the  world,  but  both  come 
under  the  dominion  of  the  law  of  nations. 

There  are  however  still  many  divergent 
practices,  and  not  every  alleged  breach  of 
International  Law  attributed  to  a  state  is 
really  so.  This  is  especially  true  of  practices 
in  maritime  war,  both  those  which  have  regard 
to  belligerents  and  neutrals,  though  even  here 
order  is  gradually  appearing,  and  should  the 
results  of  the  Hague  and  London  Conferences 
meet  with  general  acceptance  the  weaknesses 
of  these  departments  of  International  Law  will 


10  THE  BINDING  FORCE  OF 

to  a  great  degree  be  removed.  It  is  especially 
necessary  that  Englishmen  should  remember 
that  the  rules  of  neutrality  which  we  have 
observed,  and  the  practices  of  maritime  war 
which  have  been  sanctioned  by  our  Prize 
Courts,  are  not  all  of  universal  acceptance. 
We  should  hesitate  before  we  stigmatise  as  a 
law  breaker  every  state  whose  practice  is  not 
in  accordance  with  our  own,  though  we  may 
wish  that  it  were. 

In  endeavouring  to  ascertain  the  reasons 
why  International  Law  is  on  the  whole  well 
observed,  and  I  am  going  to  assume  that  it  is, 
the  different  parts  might  be  separated,  but 
there  are  certain  general  observations  which 
are  applicable  to  the  whole  body  of  rules. 

Man  is  a  gregarious  animal,  his  instincts 
are  social,  and  with  the  development  of  the 
race  they  become  political.  As  in  the  case 
with  separate  collections  of  men  which  we 
call  states  or  nations,  so  in  the  case  of  the 
aggregation  of  these  collective  masses,  man 
has  found  his  fullest  development  to  lie  in 
subordination  to  rules  of  law.     Men  often 


INTERNATIONAL  LAW  11 

voluntarily  band  themselves  together  for  social, 
political  and  religious  purposes,  and  both  the 
philosopher  and  the  religious  teacher  have 
seen  the  need  for  rules  to  regulate  these 
associations.  The  punishment  for  breach  of 
the  rules  may  be  social  ostracism,  or  religious 
excommunication.  Force  is  unnecessary  to 
procure  the  observance  of  the  rules  of  such 
associations.  Men  and  states  which  are 
collections  of  men  actuated  by  the  passions 
and  motives  of  the  individuals  composing 
them  desire  to  have  the  approbation  and  good 
will  of  their  fellows.  Isolation  is  feared,  not 
only  because  it  means  weakness  and  renders 
the  individual  or  state  open  to  attack  but 
also  because  of  an  inherent  desire  to  take 
part  in  movements  affecting  the  general 
evolution  of  the  race.  The  consensus  of  the 
opinion  of  the  world  moves  in  a  certain 
direction :  there  is  a  mysterious  action  and 
reaction  at  work  among  states  as  amongst 
individuals.  Both  alike  recognise  that  the 
sum  of  the  opinions  of  a  mass  has  a  force 
which  is  mighty  in  volume  and  cannot  event- 


12  THE  BINDING  FORCE  OF 

ually  be  ignored.  The  social  forces  of  the 
world  are  more  and  more  becoming  organised, 
directed  and  regulated,  and  the  pressure  of 
the  public  opinion  of  the  world  cannot  if  it 
be  steadily  persevered  in  and  directed  be 
resisted  in  the  long  run.  This  public  opinion 
may  be  slow  to  assert  itself  in  a  given  case, 
the  question  at  issue  between  two  states  may 
be  one  which  it  is  difficult  for  the  world  at 
large  to  appreciate,  but  unless  it  be  one  which 
the  world-opinion  recognises  as  containing 
vital  issues  for  the  states  involved,  that  opinion 
is  more  persistently  demanding  that  recourse 
be  had  to  the  peaceful  settlements  of  disputes 
by  arbitration  which  the  Hague  Conferences 
or  Treaties  have  provided.  Even  in  the  most 
vital  cases,  attempts  are  made  by  mediation 
and  good  offices  to  avoid  a  breach  of  the 
world's  peace  ^. 

The  factors  which  produce  a  world-opinion 
are  difficult  to  analyse,  all  moral  forces  are. 
There  are  popular  and  unpopular  litigants  in 
the  world's  forum  as  there  are  in  our  own  law- 
courts.     The  ethical  basis  of   International 


INTERNATIONAL  LAW  13 

Law  on  which  the  older  publicists  founded 
their  system  has  been  discarded  by  modern 
writers ;  it  cannot  be  taken  as  a  legal  basis, 
but  as  a  material  or  historical  source  of  the 
rules  which  have  been  accepted  in  practice 
it  is  of  considerable  importance.  It  took  a 
long  time  for  the  world-opinion  to  condemn 
slavery  and  the  slave  trade,  and  to  this  day 
the  tenderness  of  some  states,  in  regard  to  any 
interference  with  their  flags,  hinders  the  work 
of  those  who,  under  international  convention, 
are  engaged  in  suppressing  it  on  the  coasts 
of  Africa.  The  conscience  of  the  world  is 
slow  in  responding  to  the  demands  of  those 
who  call  for  the  full  and  complete  observance 
of  the  rights  given  by  treaty  to  the  natives  of 
the  Congo ;  there  are  still  suspicions  in  the 
minds  of  many  that  disinterested  action  is 
impossible  in  the  domain  of  international 
politics.  The  irresistible  force  of  public 
opinion  often  takes  a  long  time  to  concentrate 
on  any  given  international  question,  whether 
it  be  one  of  politics  or  law,  the  two  are 
seldom  separate,  and  it  is  just  this  difficulty 


14  THE  BINDING  FORCE  OF 

on  which  astute  politicians  seize.  They 
endeavour  to  divert  it  into  various  little 
channels  and  so  prevent  it  flowing  in  one 
mighty  stream  which  would  be  able  to  over- 
throw and  sweep  away  all  obstacles  to  the 
fulfilment  of  its  purposes.  It  is  however 
just  this  force  which  in  the  end  secures  in  the 
vast  majority  of  cases  the  observance  of  the 
regularly  accepted  and  settled  rules  of  Inter- 
national Law ;  it  is  the  fear  of  the  consequences 
of  violating  the  world's  opinion  which  nearly 
always  causes  a  state  ultimately  either  to 
abate  its  demands,  or  to  agree  to  submit  them 
to  arbitration. 

All  law  must  recognise  that  its  own 
permanence  in  a  given  form  is  an  impossibility. 
Treaties  and  conventions  are  made  to  be 
observed,  but  there  comes  a  moment  when 
even  they  no  longer  answer  to  the  existing 
facts.  State  organisms  accommodate  them- 
selves to  changes  in  the  economic  condi- 
tions of  the  people  for  whom  they  exist,  and 
International  Law  was  made  for  nations,  not 
nations  for  International  Law.    Changes  must 


INTERNATIONAL  LAW  15 

occur  from  time  to  time  in  the  contractual 
relations  of  states,  and  it  is  in  regard  to  the 
abrogation  and  denunciation  of  treaties  that 
difficult  questions  arise.  It  is  extremely  hard 
to  lay  down  comprehensive  rules  for  the 
continuance  of  treaties  or  for  the  circum- 
stances of  their  denunciation,  and  political 
movements  sometimes  produce  occurrences 
in  international  relations  which  call  for  repro- 
bation on  the  part  of  all  who  are  desirous  of 
maintaining  the  obligatory  force  of  the  rules 
of  International  Law.  States  with  whom 
treaties  have  been  made  are  justified  in 
strongly  protesting  when  other  states  break 
their  plighted  word  without  first  attempting 
to  obtain  the  release  by  consent  from  their 
contractual  obligations.  Two  striking  cases 
have  occurred  within  the  past  40  years.  In 
1870  when  France  and  Germany  were  engaged 
in  a  conflict  which  left  them  both  helpless  to 
take  any  part  in  the  political  movements  in 
Europe,  Eussia  took  the  opportunity  to 
denounce  a  portion  of  the  Treaty  of  Paris  to 
which  she,  in  common  with  the  Great  Powers 


16  THE  BINDING  FORCE  OF 

of  Europe,  was  a  party.  In  1908  the  world 
was  startled  by  the  announcements  made 
almost  simultaneously  by  the  Emperor-King 
of  Austria-Hungary  and  the  Prince  of  Bulgaria, 
whereby  important  portions  of  the  Treaty  of 
Berlin  were  denounced.  In  neither  case  was 
there  any  preliminary  attempt  to  obtain 
release  from  the  provisions  of  treaties  to 
which  many  other  states  were  parties.  In 
the  first  case,  in  consequence  of  the  strong 
protest  of  the  Powers,  Russia  receded  from 
the  position  she  had  taken  up,  a  conference 
was  held  and  the  concession  she  sought  was 
granted :  the  law  was  vindicated.  In  the 
second  case  protests  were  also  made  by  most 
of  the  Foreign  Offices  of  Europe,  the  Austrian 
action  was  undoubtedly  condemned  by  the 
public  opinion  of  the  greater  part  of  the 
world,  there  had  been  a  breach  of  law,  but 
the  moral  forces  at  work  were  sufficiently 
strong  and  concentrated  to  compel  amends 
to  be  made  for  the  injured  amour  propre  of 
Turkey  as  well  as  the  payment  of  pecuniary 
compensation.     In   both   of  these  cases  the 


INTERNATIONAL  LAW  If 

countries  in  question  issued  the  usual  explana- 
tory statements  as  to  their  proceedings  and  that 
distinguished  Austrian  jurist,  Dr  Lammasch, 
who  has  recently  presided  with  so  much 
dignity  and  ability  over  the  Anglo-American 
Fishery  Arbitration  Tribunal,  addressed  a 
striking  letter  to  the  Times  appealing  on 
legal  grounds  to  the  public  opinion  of  this 
country  on  behalf  of  the  Austrian  annexation 
of  Bosnia-Herzegovina.  But  the  public  law 
of  Europe  had  been  violated  and  the  verdict 
of  the  world  was  given  against  the  state 
guilty  of  the  breach  of  law.  Such  occurrences 
as  I  have  just  cited  are  evidences  of  the  fact 
that  International  Law  is  not  always  observed, 
and  as  Hall  says  "  render  it  more  necessary 
than  ever  that  jurists  should  use  with  greater 
than  ordinary  care  such  small  influence  as 
they  may  have  to  check  wrong  and  to  point 
out  what  is  right."  But  if  public  opinion 
cannot  always  ensure  the  observance  of  the 
law,  it  can  generally  produce  an  amelioration 
in  the  situation  which  its  breach  has  caused^. 
Of  course  it  may  happen  that  the  world's 


18  THE  BINDING  FORCE  OF 

opinion  is  indifferent,  it  may  deem  the  change 
to  be  inevitable,  and  one  long  foreseen,  and 
recognise  that  a  new  situation  and  nomen- 
clature only  register  pre-existing  facts,  and 
that  mere  state-paper  rights  must  yield  in  the 
end  to  the  inexorable  law  of  facts.  No  one 
has  accused  Japan  of  breaking  the  law  in  the 
gradual  steps  by  which  the  Empire  of  Korea 
has  finally  become  the  Province  of  Cho  Sen  in 
the  Japanese  Empire. 

There  is  on  the  other  hand  the  third 
alternative ;  the  pressure  of  public  opinion 
may  not  be  felt  to  be  a  sufficiently  strong 
deterrent  and  nothing  short  of  war  or  the 
threat  of  war  may  compel  a  state  to  submit 
to  a  revision  of  arrangements  it  has  made 
irrespective  of  other  states  which  claim  to  be 
interested  parties.  It  was  thus  that  Russia 
in  1877  was  prevented  from  reaping  the 
complete  fruits  of  her  victory  over  Turkey, 
when  the  Great  Powers  compelled  the  cancel- 
lation of  the  Treaty  of  San  Stefano  and  the 
substitution  therefor  of  the  Treaty  of  Berlin. 

Turning  to  another  department  of  Inter- 


INTERNA  TIONAL  LA  W  19 

national  Law  it  may  well  be  asked  what  it  is 
which,  even  when  the  blood  is  up  and  war 
grim,  hideous  and  sombre  holds  the  field, 
causes  admirals  and  generals  to  refrain  from 
certain  practices,  and  to  carry  out  conventions 
made  with  their  adversaries  it  may  be  years 
previous  to  the  outbreak  of  war  ?  The  Geneva 
Convention,  the  Declaration  of  Paris,  even  the 
Declaration  of  Brussels  though  never  ratified 
by  the  Powders  have  in  fact  been  observed  by 
belligerents,  and  I  have  little  doubt  that  the 
newer  conventions  of  the  Hague,  and  the 
Declaration  of  London,  if  ratified, — and  even 
if  unratified,  as  to  its  main  principles — will 
be  observed  in  any  future  war.  Why?  Be- 
cause in  a  large  number  of  the  cases  to  which 
they  apply  their  provisions  were  actually  rules 
of  warfare  evolved  by  Commanders  themselves 
before  they  were  embodied  in  conventions, 
while  in  those  parts  which  are  new,  the 
combatants  themselves  recognise  that  their 
state's  credit  is  at  stake  and  that  these 
conventions  were  made  in  their  interests  and 
the  interests  of  humanity.     Their  representa- 

2—2 


20  THE  BINDING  FORCE  OF 

tives  assisted  in  the  Conferences  wherein 
these  conventions  were  prepared,  and  they 
took  care  to  leave  them  sufficiently  elastic  on 
those  points  where  no  doctrinaire  can  dog- 
matise. The  qualification  added  to  certain 
rules  such  as  ''so  far  as  circumstances 
permit,"  "if  possible,"  and  so  forth,  "are  in 
reality  a  safety-valve,  intended,"  says  Blunt- 
schli,  "to  preserve  the  inflexible  rule  of  law 
from  giving  way  when  men's  minds  are  over- 
heated in  a  struggle  against  all  sorts  of 
dangers." 

The  world  viewed  with  horror  the  lot  of 
sick,  w^ounded  and  prisoners,  its  conscience 
was  aroused  and  a  few  humanitarians  who 
combined  zeal  with  discretion  were  enabled 
to  obtain  the  formulation  of  definite  proposals 
which  appealed  to  the  Governments  and 
armies  of  the  world.    "Men  of  nations  readily 

disunited  and  opposed are  as  a  rule,  all 

of  one  mind  as  to  the  principles  of  Interna- 
tional Law"  (to  quote  again  the  great  German 
jurist).  "That  is  what  makes  it  possible 
to  proclaim  an   International  Law  of   war, 


INTERNATIONAL  LAW  21 

approved  by  the  legal  conscience  of  all 
civilised  peoples:  and  when  a  principle  is 
thus  generally  accepted,  it  exerts  an  authority 
over  minds  and  manners  which  curbs  sensual 
appetites  and  triumphs  over  barbarism."® 

Neither  the  laws  of  war  or  neutrality  are, 
however,  perfect.  The  latter  especially  are 
based  on  compromise  and  still  leave  room  for 
divergent  practice  in  many  directions.  This 
large  body  of  rules  is  probably  destined  to 
play  a  considerable  part  in  any  future  war, 
especially  should  it  be  of  a  naval  character ; 
but,  if  the  International  Prize  Court  becomes 
an  actual  fact,  the  last  word  on  their  observ- 
ance in  naval  warfare  will  be  spoken  by  a 
court,  free  from  national  bias  and  prejudices, 
and  administering  the  law  in  the  same  way  as 
judges  in  national  courts. 

International  Law  is  made  to  be  observed; 
good  faith  is  postulated  in  all  international 
dealings,  it  is  a  duty  flowing  from  the  pos- 
session by  states  of  a  moral  nature.  It  is  not 
conceivable  that  states  would  have  sent 
delegates  to    sit   for   weeks  at  the   Hague 


22  THE  BINDING  FORCE  OF 

Conferences  if  they  had  secretly  determined 
that  the  rules  which  their  plenipotentiaries 
adopted  were  to  be  blown  to  pieces  by  the 
first  shot  fired  in  war. 

The  fact  that  war  has  not  been  abolished 
and  rendered  impossible  is  sometimes  ad- 
duced to  the  discredit  both  of  Hague 
Conferences  and  International  Law.  But  in 
my  opinion  this  is  not  a  legitimate  deduction. 
Hague  Conferences,  International  Parliamen- 
tary Unions,  Federations,  Unions  of  Workers, 
and  such-like  gatherings  all  conduce  to  a 
growing  feeling  of  solidarity  among  the 
nations  of  the  w^orld,  and  tend  to  create  an 
atmosphere  in  which  the  observance  of  the 
rules  of  International  Law  will  be  increas- 
ingly easy  to  be  realised.  But  as  yet  I  see  no 
prospect  of  perpetual  peace.  International 
Law  is  developing,  but  has  not  yet  reached 
the  fulness  of  development  of  national  laws. 
"  We  have  not  yet  eliminated  the  elements  of 
disorder  from  our  own  national  life,"  even  the 
presence  of  the  policemen  and  the  existence 
of  the  gallows  have  not  made  murder  im- 


INTERNATIONAL  LAW  23 

possible  or  unknown  among  us,  neither  is 
punishment  always  the  certain  consequence 
of  crime.  "  The  preponderance  of  order  over 
anarchy  is  all  that  has  been  attained  in  one 
case,  and  all  that  I  hope  for  in  another,"  says 
the  late  Professor  Lorimer,  who  was  no 
pessimist,  "beyond  this,  human  will  as  yet 
appears  to  be  as  impotent  as  when  brought 
into  conflict  with  the  destructive  forces  of 
physical  nature."'^  Federations,  leagues,  asso- 
ciations, societies,  unions  can  all  contribute 
something  towards  the  binding  force  of 
International  Law.  Their  leaders  can  be  the 
apostles  of  law,  and  of  morality  which  makes 
law,  they  may  assist  in  preserving  the  peace 
of  the  world,  but  it  must  be  borne  in  mind 
that  war  and  international  law  are  not  incon- 
sistent^. Peace  and  war  are  alike  governed 
by  law. 

It  is  easy  enough  to  point  out  the  failures 
of  International  Law  and  to  speak  of  Hague 
Conferences  as  "  Fiascos."  No  sensible  person 
expects  that  the  Millennium  will  come  in  his 
own  time,  and  no  good,  nay,  considerable 


J 


24  THE  BINDING  FORCE  OF 

harm,  may  be  done  by  belittling  the  attempts 
which  are  being  made  to  extend  the  empire 
of  law,  and  to  remove  causes  of  strife  among 
the  peoples  of  the  world.  Cynicism  is  not  a 
helpful  attitude  to  assume  in  regard  to  either 
national  or  International  Law,  it  is  fatal  to  all 
progress.  Imagination  and  idealism  which 
will  enable  the  present  generation  to  dream 
dreams  so  that  their  children  and  their 
children's  children  shall  see  visions  are  the 
needful  equipment  for  those  who  labour  for 
the  extension  of  the  reign  of  law  among  the 
nations  of  the  world.  The  value  of  law  it  is 
true  diminishes  in  proportion  as  the  need  for 
its  existence  ceases.  We  have  not  yet  got 
the  end  in  sight.  Much  remains  to  be  done. 
Economic  causes  both  produce  the  observance 
and  breaches  of  the  law  of  nations.  Material 
ends  are  still  the  determining  factors  in  state 
life.  Breaches  of  International  Law  can  be 
rendered  increasingly  difficult  only  by  the 
steady  maintenance  of  the  international 
ideal. 

The  nations  of  the  international  society 


INTERNA  TIONAL  LA  W  25 

are  widely  different  in  race,  language,  religion, 
civilisation,  but  all  alike  acknowledge  their 
allegiance  to  the  body  of  laws  which  has 
gradually  grown  up  to  regulate  their  mutual 
dealings.  In  support  of  this  statement  it  is 
only  necessary  to  mention  the  great  net-work 
of  treaties  on  such  subjects  as  arbitration, 
copyright,  patents,  money,  railways,  posts  and 
telegraphs,  which  increased  facility  of  com- 
munication and  the  growth  of  international 
trade  have  called  into  being.  The  acknow- 
ledgment of  the  obligation  to  conform  to  the 
requirements  of  International  Law  provides  a 
true  connecting  link,  a  real  bond,  a  unifying 
power,  stronger  than  any  other  for  which  we 
can  hope.  It  is  an  obligation  which  has  not 
been  imposed  by  external  authority,  but  has 
arisen  among  the  nations  themselves  who  re- 
cognise and  revere  the  universal  virtues  of 
good  faith  and  justice.  It  was  owing  to  the 
appeal  which  Grotius  and  the  early  writers  on 
this  subject  made  to  what  was  called  "  natural " 
law  that  their  doctrines  found  acceptance. 
They  provided  a  common  platform  on  which 


26  THE  BINDING  FORCE  OF 

the  Christian  Powers  of  Europe  could  meet, 
they  spoke  a  language  all  understood,  and 
appealed  to  moral  principles  which  all  acknow- 
ledged. There  is  a  splendid  passage  in  Sir 
James  Fitzjames  Stephen's  Liberty ,  Equality 
and  Fraternity,  which  Sir  Henry  Maine  quotes 
in  this  connection.  "  The  sources  of  religion 
lie  hid  from  us.  All  that  we  know  is,  that  now 
and  again  in  the  course  of  ages  some  one  sets 
to  music  the  tune  which  is  haunting  millions 
of  ears.  It  is  caught  up  here  and  there,  and 
repeated  till  the  chorus  is  thundered  out  by  a 
body  of  singers  able  to  drown  all  discords  and 
to  force  the  vast  unmusical  mass  to  listen  to 
them.  Such  results  as  these  come  not  by 
observation,  but  when  they  do  come  they 
carry  away  as  with  a  flood  and  hurry  in  their 
own  direction,  all  the  laws  and  customs  of 
those  whom  they  affect."  Maine  then  goes  on 
to  say  that  what  is  here  said  of  religion  is  in  a 
sense  true  of  morality.  That  moral  ideas  tend 
sooner  or  later  to  produce  a  set  of  legal  rules. 
International  Law  was  founded  on  morality 
under  the  form  of  a  supposed  law  of  Nature 


INTERNATIONAL  LAW  27 

and  was  received  with  enthusiasm^.  It  has 
extended  from  the  Christian  nations  among 
whom  it  originated  to  others  whose  systems 
of  morals  and  religions  had  a  different  basis, 
and  to-day  the  causes  for  its  original  accept- 
ance are  not  infrequently  lost  sight  of 

Politics  and  law  however  are  not  always 
found  to  be  compatible  even  in  ordinary  civil 
life,  and  there  are  certain  political  aspirations 
of  states  which  cannot  or  will  not  submit  to 
the  curbing  and  restraining  power  of  law  and 
public  opinion  for  its  sanction.  States  en- 
deavour to  make  their  demands  conform  to 
legal  principles,  for  all  have  learnt  that  to  draw 
the  sword  hastily  on  behalf  of  claims,  however 
strongly  they  may  be  supported  by  the  na- 
tional will,  involves  losses  which  no  war- 
indemnity  can  make  good.  There  are  times 
when  ambitions  or  irresistible  laws  of  expan- 
sion cause  a  state  to  conduct  its  negotiations 
with  the  pen  in  one  hand  and  the  sword  in  the 
other.  There  are  times  also  when  a  nation 
will  be  compelled  to  have  recourse  to  force 
against  the  unjust  oppression  of  a  powerful 


28  THE  BINDING  FORCE  OF 

state.  There  are  also  wars  without  the  rattle 
of  the  cannon,  and  decisive  victories  without 
the  firing  of  a  gun.  We  have  not  yet  got 
away  from  the  region  of  force  as  the  ultimate 
power  behind  the  demands  of  a  nation  bent 
on  carrying  through  a  given  policy,  or  warding 
off  an  anticipated  injury,  real  or  fancied. 
Diplomatic  negotiations  have  been  likened  to 
paper-money,  valuable  as  long  as  there  is  a 
sufficient  gold-reserve,  but  useless  without  a 
supply  of  bullion.  This  fact  cannot  be  over- 
looked by  all  who  take  account  of  the  forces 
working  within  the  family  of  nations  ;  I  do  not 
desire  to  lay  too  great  stress  on  this  point,  but 
it  cannot  be  neglected  in  any  discussion  of  this 
subject.  War  still  remains  as  an  instrument 
of  policy,  it  "  is  only  a  continuation  of  state 
policy  by  other  means,"  writes  Clausewitz'°,  and 
there  have  been  in  the  past  and  will  be  in  the 
future  occasions  when  force  and  not  reason 
will  be  the  deciding  fact  in  international  dis- 
putes. Arbitration  as  a  means  of  settling 
disputes  is,  happily,  largely  on  the  increase, 
and  although  the  public  opinion  of  the  world 


INTERNATIONAL  LAW  29 

may  not  be  able  to  appreciate  in  all  its  bear- 
ings a  dispute  between  two  Powers,  it  can 
appreciate  the  position  of,  and  will  with  in- 
creasing severity  condemn,  that  Power  which 
refuses  to  allow  the  peaceful  application  of 
the  law  of  nations  by  an  international  tri- 
bunal. 

The  past  decade  has  witnessed  two  striking 
features  in  the  international  situation  which 
are  not  without  influence  in  regard  to  the 
future  of  International  Law.  On  the  one  hand 
there  has  been  a  great  growth  in  the  number 
of  arbitration  treaties  between  the  Powers  of 
the  world,  and  a  great  increase  in  resort  to 
arbitration.  The  Permanent  Court  established 
at  the  Hague  by  the  first  Peace  Conference  of 
1899  has  been  appealed  to  by  nearly  all  the 
great  Powers  of  the  world,  and  long  standing 
disputes  have  been  referred  to  it  for  a  peace- 
ful solution.  It  is  true  that  with  one  or  two 
notable  exceptions  all  the  arbitration  treaties 
exclude  from  their  operation  questions  affect- 
ing the  honour  and  vital  interests  of  the 
parties,  and  it  is  left  to  each  state  to  say  what 


30  THE  BINDING  FORCE  OF 

disputes  come  under  this  designation.  Pre- 
sident Taft  has  recently  stated  that  personally 
he  did  not  see  any  more  reason  why  matters 
of  national  honour  should  not  be  referred  to  a 
Court  of  Arbitration  than  matters  of  property 
or  of  national  proprietorship.  But  this,  he 
admits,  is  going  further  than  most  men  are 
prepared  to  go  ;  still  the  idea  of  a  Court  of 
Honour,  not  unknown  in  countries  where  the 
duel  still  holds  sway,  represents  an  aspiration 
for  which  men  may  well  work.^^  The  other 
feature  is,  however,  of  a  very  different  cha- 
racter. There  has  been  a  large  and  continuous 
growth  in  the  expenditure  of  nations  on  arma- 
ments and  military  budgets.  Between  the 
years  1898  and  1906  the  military  expenditure 
of  Europe,  the  United  States  and  Japan  in- 
creased from  £251,000,000  to  £320,000,000, 
and  it  has  been  growing  since. 

These  two  facts  are  of  striking  importance 
and  not  easy  to  reconcile.  Arbitration  treaties 
and  resort  to  arbitration  are  increasing.  Peace 
and  Conciliation  Societies  are  flourishing,  and 
at  the  same  time  every  nation  is  having  its 


INTERNA TIONAL  LAW  31 

resources  continuously  drawn  upon  for  the 
maintenance  of  armies  and  navies  and  pre- 
paration for  war.  All  Europe  is  living  in 
armed  camps. 

In  considering  the  binding  force  of  Inter- 
national Law,  its  sanction  and  future  develop- 
ment, neither  of  these  two  factors  in  the 
situation  must  be  dwelt  upon  exclusively,  but 
to  neglect  either  is  to  take  a  partial,  biassed 
and  unsound  view  of  the  situation.  They 
represent  a  definite  stage  in  the  development 
of  the  progress  of  opinion.  States  now 
recognise  that  in  the  vast  majority  of  cases, 
it  is  to  their  advantage  and  that  of  the  world 
at  large  that  disputes  should  be  settled  by 
the  peaceful  application  of  the  rules  of  law, 
but  as  yet  they  are  not  prepared  to  bring  all 
possible  causes  of  difference  within  its  sphere. 
The  peaceful  settlement  of  disputed  questions, 
and  the  forcible  but  regulated  self-redress 
by  war  exist  side  by  side,  both  are  governed 
by  the  rules  of  International  Law.  How  long 
will  the  situation  continue  ?  Will  a  peaceful 
solution  of  disputes  ultimately  be  the  only 


32  THE  BINDING  FORCE  OF 

solution?  I  do  not  presume  to  offer  any 
prophetic  reply  to  the  first  of  these  questions, 
but  as  regards  the  second,  if  the  analogy 
between  the  growth  of  municipal  law  and 
International  Law  may  be  relied  on,  the 
peaceful  settlement  of  disputes  will  tend 
to  increase,  and  reason  be  substituted  for 
force.  But  even  this  advance  in  civilisation 
will  not  necessarily  mean  the  advent  of  an 
era  of  perpetual  peace ;  war  will  remain  as 
long  as  evil  and  injustice  continue.  "  We 
should  believe  in  the  abolition  of  war  only  if 
we  believed  that  some  day  no  criminals  will 
be  left  and  that  all  the  prisons  will  be  closed, 
and  that  some  day  sincere  differences  of 
opinion  in  matters  of  principle  will  be  impos- 
sible," says  a  writer  in  a  recent  number  of  the 
Spectator  in  an  Article  on  the  late  Professor 
James'  paper  on  ''The  Moral  equivalent  of 
War." 

Meantime  everyone  interested  in  the 
maintenance  of  peace,  towards  which  Inter- 
national Law  certainly  tends,  will  welcome  the 
evidence  afforded  by  the  growth  of  agencies 


INTERNA  TIONAL  LA  W  33 

assisting  to  this  end.  Every  reference  to 
arbitration,  and  every  acceptance  of  an 
arbitral  award,  every  convention  clearing  up 
difficulties  and  laying  down  definite  rules  for 
future  cases,  is  a  step  in  the  progress  of  legal 
methods  and  aflfbrds  further  proof  of  the 
binding  force  of  International  Law.  Perhaps 
the  most  noteworthy  triumph  of  the  spirit  of 
conciliation  and  respect  for  law  was  seen 
when  the  dispute  between  this  country  and 
Kussia  over  the  Dogger  Bank  incident  was 
settled  by  the  peaceful  method  of  a  Commission 
of  Enquiry  under  the  Hague  Convention. 
The  recent  decision  of  the  Hague  Tribunal 
putting  an  end  in  a  peaceful  and  juridical 
manner  to  a  dispute  of  over  a  century's 
standing  between  Great  Britain  and  the 
United  States  of  America  is  another  striking 
testimony  to  the  growth  of  the  law-abiding 
spirit.  Until,  however,  the  conscience,  not  or 
a  few  states,  but  of  all  states,  is  elevated  to 
that  of  the  highest  thinkers  among  them,  and 
so  long  as  civilisation  is  in  varying  degrees 
of  development  in  the  countries  forming  the 

H.  3 


34  THE  BINDING  FORCE  OF 

family  of  nations,  we  shall  have  to  take  into 
account  the  existence  of  armaments  as  forces 
both  assisting  in  the  maintenance  of  inter- 
national peace,  enforcing  the  rules  of  Inter- 
national Law,  righting  wrongs  and  procuring 
the  acceptance  of  the  decrees  of  international 
tribunals.  It  was  in  this  line  of  thought  that 
Mr  Roosevelt,  whose  devotion  to  the  cause  of 
peace  has  been  so  signally  recognised  by  the 
award  of  the  Nobel  Peace  Prize,  was  led  to 
make  the  following  observation  at  Christiania 
on  the  occasion  of  the  presentation  to  him  of 
that  Prize.  After  advocating  the  formation 
of  a  League  of  Peace  among  the  Great  Powers 
to  prevent  the  breach  of  the  world's  peace, 
and  adverting  to  the  difficulty  in  the  way  of 
the  enforcement  of  the  decrees  of  the  Hague 
Tribunal,  should  necessity  arise,  he  went  on 
to  say :  "In  new  and  wild  communities 
where  there  is  violence,  an  honest  man  must 
protect  himself;  and  till  other  means  of 
securing  his  safety  are  devised  it  is  both 
foolish  and  wicked  to  persuade  him  to 
surrender  his  arms  while  the  men  who  are 


INTERNATIONAL  LAW  35 

dangerous  to  the  community  retain  theirs. 
He  should  not  renounce  the  right  to  protect 
himself  by  his  own  efforts  until  the  community 
is  so  organised  that  it  can  effectively  relieve 
the  individual  of  the  duty  of  putting  down 
violence.  So  it  is  with  nations.  Each  nation 
must  keep  well  prepared  to  defend  itself 
until  the  establishment  of  some  form  of 
international  police  power,  competent  and 
willing  to  prevent  violence  as  between  nations." 
**  I  think  the  desire  is  growing  in  Europe  to 
see  the  pace  of  the  increase  of  expenditure 
on  armaments  diminish/'  said  Sir  Edward 
Grey  during  the  crisis  of  October  1908,  "but 
you  cannot  expect  to  see  the  expenditure  on 
armaments  diminish,  if  people  live  in  appre- 
hension that  treaties  can  be  constantly  altered 
without  the  consent  of  all  the  Powers  who  are 
parties  to  them." 

I  should  however  have  entirely  failed  in 
my  endeavour  to  provide  an  answer  to  the 
question  why  nations  observe  the  rules  of 
International  Law  if  I  had  only  enunciated 
the  idea  that  it  was  from  fear  of  punishment 

3—2 


38  THE  BINDING  FORCE  OF 

be  realised  by  the  perfection  of  the  individual. 
This  is  true  not  only  in  the  case  of  national 
well-being,  but  also  in  the  international 
society.  The  higher  and  more  developed  the 
moral  sense  of  any  nation,  the  better  equipped 
it  is  for  the  enforcement  of  its  ideals,  and  the 
more  effective  will  be  its  contribution  to  the 
public  opinion  of  the  society  of  nations.  This 
implies  for  any  nation  a  steady  continuity  of 
purpose,  an  unflinching  adhesion  to  an  ideal, 
a  disciplining  of  the  manhood  of  the  state  and 
a  wide  diffusion  of  the  knowledge  of  the 
existing  rules  of  International  Law.  The 
devotion  to  a  high  international  ideal  is  no 
bar  to  the  sturdiest  local  patriotism.  The 
greater  the  love  and  attachment  of  a  man  to 
his  native  land,  the  greater  the  sacrifices  he 
is  prepared  to  make  on  her  behalf,  the  more 
likely  is  he  to  appreciate  similar  qualities  in 
other  nations. 

Public  opinion  is,  then,  both  the  great 
factor  in  creating,  in  improving  and  in  en- 
forcing the  law  of  nations,  but  it  needs 
educating.     International  public   opinion   is 


INTERNATIONAL  LAW  39 

the  aggregate  of  the  opinions  of  the  states 
of  the  world,  and  it  behoves  each  state  to 
endeavour  to  keep  the  standard  high,  and  to 
diffuse  a  knowledge  of  the  rules  observance  of 
which  it  desires  and  on  which  it  will  insist,  f 
The  doctrine  that  might  and  right  are  not  | 
correlative  terms  is  one  which  needs  constant 
reiteration,  for  history  shows  that  they  have 
too  often  been  identified  in  practice.  Honesty 
is  not  only  the  best  policy  for  individuals  and 
states,  but  it  is  predicated  of  all  international 
dealings,  while  deceit  and  subterfuge,  and 
disregard  for  the  verdict  of  the  world's  judg- 
ment now,  will  lead  to  the  affirmation  of  that 
judgment  on  appeal  to  posterity,  for  as 
Schiller  well  says,  "  the  history  of  the  world 
is  the  Tribunal  of  the  world."  It  is  for  the 
peoples  of  each  state,  guided  by  ethical 
principles  and  grounded  in  scientific  juris- 
prudence, to  work  for  the  realisation  of  justice 
in  law,  till  right  and  law  become  recognised  as 
synonymous,  and  it  shall  no  longer  be  possible 
for  the  statement  to  be  made  in  regard  to 
International  Law  which  is  sometimes  heard 


40  THE  BINDING  FORCE  OF 

in  regard  to  national  law  :  "  Such  may  be  the 
law,  but  it  is  not  justice." 

The  rapidity  of  the  progress  of  the  rule  of 
law  among  the  nations  of  the  world  will  be 
accelerated  by  a  more  wide  diffusion  of  the 
knowledge  of  existing  rules  of  International 
Law,  for  law  to  be  observed  must  be  known, 
and  with  knowledge  will  come  improvement. 
It  is  not  out  of  place  in  this  connection  to 
render  homage  to  the  work  which  is  being 
done  both  by  the  Institut  de  Droit  Interna- 
tional and  the  International  Law  Association. 
The  contributions  made  to  International  Law 
by  the  former  body  might  well  form  the 
subject  for  a  separate  lecture,  for  they  have 
been  many  and  valuable.  Its  labours  are  less 
evident  to  the  general  public,  and  are  better 
known  to  experts  than  to  the  world  at  large. 
The  work  of  the  International  Law  Association, 
whose  meeting  in  London  during  the  first 
week  of  August  last  attracted  so  much  atten- 
tion, is  more  popular  in  character  and  draws 
upon  a  larger  circle  than  that  of  the  Institut. 
Its  publicity  and  the  fact  that  its   annual 


INTERNATIONAL  LAW  41 

meetings  are  held  in  the  great  centres  of  the 
world's  commerce  do  much  to  bring  to  the 
notice  of  the  public  both  existing  rules  and 
suggested  changes,  and  to  awaken  interest  in 
topics  of  vital  importance  to  the  world  at 
large.  Each  of  these  bodies  is,  in  its  own 
way,  contributing  in  a  striking  manner  to 
assist  in  the  formation  of  a  strong  public 
opinion  for  the  enforcement  of  the  rules  of 
International  Law,  and  by  meeting  in  various 
countries  each  is  materially  aiding  to  stan- 
dardise that  opinion  and  so  bring  about  a  real 
cohesion  of  states  cemented  by  increasing 
mutual  knowledge.  The  apostles  of  the  \ 
propaganda  of  International  Law  must  of 
necessity  be  statesmen  and  lawyers,  but  all 
classes  of  the  community  in  every  nation, 
journalists,  clergy,  merchants  and  artisans, 
must  co-operate,  for  there  is  need  for  a  fuller 
knowledge  of  the  existing  rules  of  law  so  that 
their  value  may  be  the  better  appreciated,  t 
The  wider  the  diffusion  of  this  knowledge, 
the  greater  the  prospect  of  its  obligatory 
character  receiving  full  recognition,  for  it  rests 


42  THE  BINDING  FORCE  OF 

on  the  fundamental  basis  of  mutual  trust  and 
good  faith.  Hague  Conferences  and  Inter- 
national Associations  are  all  making  for  this 
end,  but  it  is  an  undertaking  to  which  every 
state  must  increasingly  devote  itself  It  is 
a  work  of  education.  Education  properly 
understood  is  a  great  character-forming 
process,  and  one  of  its  greatest  results  is  the 
production  of  a  feeling  of  self-respect  which 
generates  acorresponding  respect  and  courtesy 
to  others.  Thus  it  is  with  individuals,  so  it 
is  with  states.  As  self-knowledge  and  self- 
reverence  grow  in  each  state  there  will  also 
grow  with  increasing  rapidity  a  power  of 
appreciation  of  other  states,  and  a  consequent 
diminution  of  those  feelings  of  suspicion  and 
;  distrust  which  are  the  greatest  hindrance  to 
^  the  growth  of  international  goodwill  and  the 
application  of  the  rule  of  law  to  international 
disputes. 

There  is  in  this  country  particularly  a  need 
for  a  greater  study  of  International  Law.  In 
its  teaching,  we  are,  I  think,  considerably 
behind    many    of    our    neighbours  ^2.      The 


INTERNATIONAL  LAW  43 

Chairs  and  Lectureships  on  the  subject  are 
absolutely  incommensurate  with  its  import- 
ance, and  the  ignorance  of  it,  both  of  the 
general  public,  and  if  I  dare  say  so,  even  of 
some  Members  of  Parliament,  is  colossal.   This 
is  partly  due  to  the  spirit  of  disbelief  in  its 
value  to  which  I  referred  at  the  beginning  of 
this  lecture,  and  partly  to  our  insular  habits  of 
thought  in  legal  matters.     It  is  time  that  this 
was    remedied,   and    that    in    all    our  great 
centres    of    education    and    industry    there 
should  be  professors  and  lecturers  to  diffuse 
a  knowledge  of  the  law  by  which  the  nation  is  j  '^'^^ 
bound,  and  whose  observance  is  entrusted  to  I  ^'^^ 
the  nation's  honour :  at  the  same  time  they  \  ^^-J 
should    endeavour    to    combine    with    their   •  'y^ 
teaching  the  aims  which  the  distinguished         "^ 
founder  of  the  professorship  of  International      "^^ 
Law  at  Cambridge  enjoined  on  the  occupant      ^^^^ 
of  that  Chair,  namely  that  in  all  parts  of  his        i^ 
treatment  of  the  subject  he  should  lay  down       ^^ 
such  rules  and  suggest   such    measures    as  4^ 

might  tend  to  diminish  the  evils  of  war  and       '^ 
finally  to  extinguish  war  among  nations. 


NOTES 

(1)  The  correspondence  referred  to  related  to  naval 
bombardments  of  open  coast  towns.  Professor  Holland's 
letters  are  reprinted  with  notes  on  pp.  73 — 85  of  Letters 
on  War  and  Neutrality;  see  also  on  the  same  subject 
Studies  in  International  Law  by  the  same  writer,  p.  96. 
The  correspondence  and  the  subsequent  history  of  the 
controversy  are  particularly  interesting  as  showing  the 
value  of  the  work  that  jurists  can  do  *'  to  check  wrong  and 
point  out  what  is  right." 

(2)  All  that  can  be  adduced  from  the  lack  of  the 
elements  which  Austin  predicates  which  are  found  in 
national  laws  is  that  International  Law  is  ill-defined  in 
consequence  of  the  absence  of  a  legislature ;  and  that  its 
application  may  be  dubious  and  not  always  effective  owing 
to  the  absence  of  judicial  authority  and  an  ill-assured 
sanction  ;  but  this  was  the  condition  of  national  law  in  its 
early  stages  and  only  shows  defective  development  (see 
F.  Despagnet,  Droit  International  Public,  §§  38,  39). 

"  The  doctrines  of  international  law  have  been  elaborated 
by  a  course  of  legal  reasoning ;  in  international  contro- 
versies precedents  are  used  in  a  strictly  legal  manner : 
the  opinions  of  writers  are  quoted  and  relied  upon  for  the 
same  purposes  as  those  for  which  the  opinions  of  writers 


46  NOTES 


are  invoked  under  a  system  of  municipal  law ;  the  conduct 
of  states  is  attacked,  defended,  and  judged  within  the 
range  of  international  law  by  reference  to  legal  considera- 
tions alone ;  and  finally,  it  is  recognised  that  there  is  an 
international  morality  distinct  from  law,  violation  of 
which  gives  no  formal  ground  of  complaint,  however 
odious  the  action  of  the  ill-doer  may  be.  It  may  fairly 
be  doubted  whether  a  description  of  law  is  adequate  which 
fails  to  admit  a  body  of  rules  as  being  substantially  legal, 
when  they  have  received  legal  shape,  and  are  regarded  as 
having  the  force  of  law  by  the  persons  whose  conduct  they 
are  intended  to  guide."  W.  E.  Hall,  Interrmtional  Law^ 
p.  14  (5th  edition). 

"And  the  different  states  not  only  recognise  the 
rules  of  international  law  as  legally  binding  in  innumerable 
treaties  and  emphasise  every  day  the  fact  that  there  is 
a  law  between  themselves.  They  moreover  recognise  this 
law  by  their  municipal  laws  ordering  their  officials,  their 
civil  and  criminal  courts,  and  their  subjects  to  take  up 
such  an  attitude  as  is  in  conformity  with  the  duties 
imposed  upon  their  sovereignty  by  the  law  of  nations." 
L.  Oppenheim,  International  Law,  Vol.  i.  p.  14. 

(3)  W.  E.  HaU,  op.  cit  p.  1. 

(4)  See  Article  by  the  Hon.  Elihu  Root  on  "The 
sanction  of  international  law."  American  Jourmil  of 
International  Law^  Vol.  ii.  pp.  451 — 457. 

(5)  The  Right  Hon.  Sir  Edward  Grey,  M.P.,  Secretary 
of  State  for  Foreign  Affairs,  in  a  speech  at  Wooler  on  the 
7th  October  1908,  is  reported  in  the  Times  to  have  spoken 
as  follows  on  the  attitude  of  Great  Britain  on  the  occasion 
of  the  annexation  of  Bosnia  and  Herzegovina  by  Austria : 


NOTES  47 


"  We  cannot  recognise  the  right  of  any  Power  or  State 
to  alter  an  international  treaty  without  the  consent  of  the 
other  parties  to  it.  We  cannot  ourselves  recognise  the 
result  of  any  such  actions  till  the  other  Powers  have  been 
consulted,  including  especially  in  this  case  Turkey,  who  is 
one  of  the  other  Powers  most  closely  concerned,  because  if 
it  is  to  become  the  practice  in  foreign  politics  that  any 
single  Power  or  State  can  at  will  make  abrupt  violations 
of  international  treaties  you  will  undermine  public  confi- 
dence with  all  of  us." 

With  this  may  be  compared  the  language  used  by  Lord 
Granville,  in  1870 :  "  It  has  always  been  held  that  the 
right  [of  releasing  a  party  to  a  treaty]  belongs  only  to  the 
governments  who  have  been  parties  to  the  original  instru- 
ment  Yet  it  is  quite  evident  that  the  effect  of  such 

a  doctrine  [as  that  advanced  by  the  Russian  Government] 
and  of  any  proceeding  which,  with  or  without  avowal,  is 
founded  upon  it,  is  to  bring  the  entire  authority  and 
efficacy  of  treaties  under  the  discretionary  control  of  each 
of  the  powers  who  may  have  signed  them ;  the  result  of 
which  would  be  the  entire  destruction  of  treaties  in  their 
essence."    (Quoted  by  W.  E.  Hall,  op.  cit.  p.  356.) 

(6)  A  translation  of  Professor  Bluntschli's  letter  to 
Count  von  Moltke  from  which  these  quotations  are  taken  is 
given  in  Professor  Holland's  Letters  on  War  and  Neutrality, 
p.  27. 

(7)  J.  Lorimer,  Imtitutes  of  the  Law  of  Nations, 
Vol.  II.  p.  184.  The  whole  of  Book  V  on  "  The  ultimate 
problem  of  international  jurisprudence"  is  worthy  of  study 
though  the  conclusions  of  the  learned  writer  will  probably 
be  rejected  by  many  readers. 


48  NOTES 


(8)  See  on  the  subject  of  "War  no  illegality,"  L. 
Oppenheim,  Internatimial  Law,  Vol.  ii.  §  53,  also  W.  E. 
Hall,  International  Law,  pp.  60 — 61 ;  J.  Westlake,  Inter- 
national Law,  War,  p.  3. 

(9)  International  Law,  p.  46. 

(10)  See  S.  L.  Murray,  The  Reality  of  War,  Chapter 
viii.  "  War  as  policy." 

(11)  See  Andrew  Carnegie,  Peace  versus  War:  The 
President's  Solution, 

(12)  In  Great  Britain  there  are  Professorships  of 
International  Law  in  Oxford,  Cambridge  and  Edinburgh. 
In  Trinity  College,  Dublin,  the  Professor  of  Political 
Economy  combines  with  his  duties  the  Professorship  of 
International  Law  and  Jurisprudence.  An  Honorary  Pro- 
fessorship of  International  Law  has  recently  been  established 
in  Liverpool.  There  is  a  Readership  in  Roman  Law,  Jurispru- 
dence, and  Public  and  Private  International  Law  in  the  Inns 
of  Court,  London,  and  a  Readership  in  International  Law 
in  the  University  of  Bristol.  There  are  also  Lectureships  in 
Aberdeen,  Glasgow  and  the  London  School  of  Economics. 
In  all,  there  appear  to  be  ten  Professors,  Readers  and 
Lecturers  in  Great  Britain.  In  France  there  are  twenty 
Professors  and  several  Lecturers  and  in  every  German  and 
Swiss  University  International  Law  is  represented  by  at 
least  one  and  sometimes  two  Professors.  It  is  probable 
that  both  in  Great  Britain  and  France  the  subject  is  also 
dealt  with  by  Professors  or  Lecturers  whose  only  designa- 
tion is  that  of  "  Law." 


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